The day Christopher Simmons
was sentenced to death row in Missouri for a crime he committed when he
was seventeen, he probably didn't know his opportunity for freedom lay
in the nether regions of his frontal lobe. Simmons' case, which led the
U.S. Supreme Court to overturn the death penalty for individuals under
eighteen, rested in part on neuroscientific research
which shows some of the ways that the adolescent brain is still
developing. Simmons' case was a victory for those who are seeking a
sense of justice and fairness in the application of the law, but the
use of this research, and its recent proliferation in the media, in policy papers, and in two Supreme Court cases heard last week, raises considerable concerns about the research's impact on the civil rights and liberties of young offenders.

We should question how hard this 'hard' science about the brain
works to fight the use of adult-level penalties against young people.
Reformers' reliance on this research raises some troubling questions
about the drift of reform strategies in the juvenile justice system
towards natural science at the cost of engagement with social
science, which demonstrates that young people charged with crimes often
suffer from a variety of socio-structural disadvantages that may play a
role in their entry into the juvenile justice system. This research
also shows that young people's pathways out of punishment rely on the
development of social capital -- relationships, networks, and opportunities -- as much as they do on the development of their human capacities.

This brain research may convince the public that development is a
fixed, undisputed path toward rational thought, thus further
marginalizing those children who stray from the path of 'normal'
development. Knowledge about developmental stages is in fact highly
contested, as educationalists will attest. Our preoccupation with
developmental stages implies that children are in the process of becoming, rather than being individuals with valid moral and ethical claims to stake in the process of their punishment.

Secondly, advocates' uses of brain research, and their reliance on
'hard' science, raise some potentially troubling questions about the
potential impact of this science on ideas about human potential.
Nikolas Rose of the BIOS Research Centre
for the study of Bioscience, Biomedicine, Biotechnology and Society at
the London School of Economics argues that the brain has become the
repository of what was once left to the psyche. He suggests that new
technologies which draw from brain research, and in particular those
that seek out abnormalities in the human brain, raise
important questions about how notions of identity and human potential
might be altered by this research. He and his colleague Ilina Singh argue
that new ideas about risk or susceptibility (to psychiatric disorders,
for example) that emerge through the study of the brain could
potentially be used in stigmatizing or coercive ways. Legal thinkers
have raised related civil liberties concerns about the uses of
neuroscience in legal proceedings.

This research may also push us toward the notion that once a child
has reached adulthood, his or her opportunity for change may be
eclipsed. To use the language of the majority opinion of the Supreme Court in Roper v. Simmons,
adults who commit crimes may soon be seen to have entered the realm of
the "irretrievably depraved." If children 'deserve' less punitive
sanctions, then should we assume that adults 'deserve' more serious
ones?

This research may lead to a more deeply paternalistic approach in
the treatment of young people in a legal system that is already rooted
in -- and arguably limited by -- the idea of children in need of
protection and governmental intervention. We need to engage more
critically with the stories we have about young people in the criminal
justice system that are rooted in their experiences as
individuals and as members of a social and political community, and
which begin to convey some of the consequences of punishment on their
abilities to flourish as human beings and to express their dignity. As
the Australian scholar Judith Bessant
argues, the brain scan is an inadequate substitute for the more
holistic, empirically grounded knowledge we have of young people in the
criminal justice system.

The Supreme Court will decide next year about whether they will
allow the use of life without parole for juvenile offenders. Though
these cases cover relatively narrow issues, this is an opportune time
to start raising more serious questions about meaningfully fighting the
extraordinary levels of punitiveness toward young people and adults that should be a source of shame for our nation

Alexandra Cox is a Doctoral researcher at the Institute of Criminology at Cambridge University, where she is also a Gates Scholar. She is a research consultant for the Brooklyn-based Institute for Juvenile Justice Reform and Alternatives.